Warners General Terms of Business
1. Warners Solicitors LLP
Warners Solicitors is a trading name of Warners Solicitors LLP, a limited liability partnership registered in Scotland Number SO301921 whose registered office is at 22 St Patrick Square, Edinburgh EH8 9EY. The Firm of Warners Solicitors LLP is authorised by The Law Society of Scotland. We are also authorised in relation to Incidental Financial Business by The Law Society of Scotland. A list of the Partners of the Firm is available on request.
2. Equality and Diversity
In accordance with the Equality Act 2010, we are committed to providing equality and diversity in all our dealings with clients, employees and third parties.
3. Disability Access Policy
We aim to ensure that all of our services are accessible to clients, where reasonably practicable. If you require any aid or assistance to enable you to attend a meeting or to conduct business with us, please contact us and we will arrange to accommodate your needs, where possible.
4. Reasonable Adjustments
We can provide reasonable adjustments to ensure that our services are accessible to all. Some examples of the reasonable adjustments we can make are –
- Providing documents or correspondence in a larger font size than standard
- Using email or the telephone in preference to hard copy letters where appropriate, which may assist those with a vision impairment
- Using plain English appropriate to the person we are dealing with and avoiding jargon
Please let us know if you have a disability and require any adjustments.
These Terms of Business together with any Letter of Instruction which we may send you confirming your instructions (“Letter”) constitutes the Contract between us. Unless we agree otherwise with you in writing or by email, it should be assumed that by providing us with your instructions you accept the terms of these Terms of Business in full and we shall proceed only on this basis.
These Terms of Business shall apply to the services which we provide to you as our client in relation to any matter on which you consult with us, unless otherwise agreed. When you instruct us on a new matter, we shall normally send you a Letter confirming your instructions, except where the instructions constitute repeat business. The terms of the Letter and these Terms of Business shall constitute the contract between us (“Contract”) for that matter.
The services we provide in relation to any matter will be described in the Letter or will otherwise be agreed between us at the outset of the matter and may be varied by agreement during the course of the matter.
Unless otherwise expressly agreed in writing, our services are provided only for the benefit of you as our client. We accept no responsibility to any other party.
We shall notify you at the outset of the matter (normally in the Letter) of the partner with ultimate responsibility for our work for you. In addition, we shall notify you of the person or persons with day-to-day responsibility for providing our service to you. He, she or they may be assisted by others as the matter progresses.
6. Governing Law
These Terms of Business are governed by the Laws of Scotland and are subject to the exclusive jurisdiction or the Scottish Courts.
Warners Solicitors abide by the professional practice standards set forth in the Standards of Conduct Practice Rules for solicitors laid down by the Law Society of Scotland. The Standard of Conduct Practice Rules may be inspected by accessing the Law Society of Scotland website – www.lawscot.org.uk
As your agents we can only act on information and instructions given to us. You should not assume we have knowledge of any factual matters. You can instruct us either verbally or in writing, although we may ask you to confirm verbal instructions to us in writing. If there is any change in your instructions, you must notify us immediately.
We will act strictly in accordance with your instructions – either written or verbal.
When we are acting on behalf of joint clients, then unless you advise us to the contrary or unless it is clearly inappropriate in the particular circumstances, we will proceed on the basis that instructions from one party have the approval of the other. If that arrangement is not acceptable to you, you are asked to make that clear in writing at the earliest possible stage.
If you are a Limited Company then unless otherwise agreed with you in advance, it is a condition of our accepting your instructions that we may accept instructions from any one of the Directors and that all directors are jointly and severally liable along with the company for payment of our fees and outlays and any interest thereon. It is a further condition of our accepting instructions that you agree to our instructing a company search to demonstrate that the company is in existence. The expense of such a search will be payable by you. You will also be required to produce to us on request a copy of the Memorandum and Articles of Association of the company.
If you are a Limited Liability Partnership, or Partnership, we can take instructions from any member, partner or anyone authorised by any member or partners to do so.
Our office opening hours are Monday – Friday 9.00am – 5.00pm.
9. Client Responsibilities
In order to carry out our services for you we shall require your full co-operation and assistance throughout the duration of the Contract. This includes providing all information and documentation requested by us in a timely manner.
Please also advise us as soon as possible in respect of any changes in your objectives and circumstances, or if you receive new and relevant information in relation to your matter.
You are also responsible for keeping us advised of any change of contact details. We will always endeavour to give you notice of when you will be required to sign documents but on occasion you may need to be available at short notice for this purpose. Please also keep in contact with us regarding your holiday plans as critical dates might need to be met as part of your matter.
10. Method of Communication
We will communicate with you at the address, fax, email or telephone number provided by you.
We will accept and act upon instructions from you or any authorised party by email. You will be bound legally by any such instructions and will be liable for all fees and outlays which flow from them.
Please note that the data we send by email is not encrypted. Emails, and mobile telephones, are potentially insecure channels of communication. Information communicated in this way may be intercepted and emails may be lost, amended, destroyed, delayed or unsafe to use. We take steps to protect the integrity of our IT systems by screening for viruses on emails sent and received. We expect you to do the same. We shall not be liable for any loss or damage which you may suffer or incur as a result of using such communication channels. If you do not wish to use such channels of communication, please advise us accordingly at the outset of your transaction. Please take particular care if receiving information about bank account details and verify these directly with us either in person at one of our offices, or by telephone. Please be aware that there is a significant risk posed by cyber fraud, specifically affecting email accounts and bank account details. Please note that our bank account will not change during the course of a transaction and we will not change our bank details via email. We will not accept responsibility if you transfer money into an incorrect account.
Emails to and from our IT systems may be subject to monitoring and recording for business and other lawful purposes.
We will keep all information relating to your affairs confidential and we will not disclose your confidential information to others. If we are working in conjunction with other professional advisers instructed by you (either directly or through us), we will assume that we may disclose any relevant aspect of your affairs to them.
You agree we may also disclose confidential information about you and your affairs if –
- Such disclosure is required or permitted by law;
- Such disclosure is authorised by you;
- Such disclosure is permitted by the professional rules applicable to solicitors practising in Scotland;
- We are required to do so by our insurers, solicitors appointed by our insurers, our brokers or other professional advisers;
- Your file is subject to an external quality audit;
- Our work for you requires us to give information to third parties such as expert witnesses, other professional advisers and funders;
- Such disclosure is required to ensure compliance with statute and/or regulations laid down by the Law Society of Scotland from time to time.
We will also disclose information about you and your affairs if doing so falls within the scope of our instructions from you, to do so. In particular, we instruct third party contractors in the course of our work and we use outsource resources in the course of our business. In these circumstances we shall, if appropriate, obtain an agreement as to confidentiality from such third parties.
Solicitors may be required by statute to make a disclosure to the National Crime Agency where they know or suspect a transaction may involve money laundering or terrorist financing. If we make a disclosure in relation to your matter, we may not be able to tell you that a disclosure has been made. We may also require to stop working on your matter for a period of time and may not be able to tell you why.
We have no obligation to disclose to you confidential information about other clients.
If we are required for any reason (whether during the course of a matter, or after it has ended) to disclose documents or to give information relating to a matter or your affairs pursuant to a court order, notice or demand served by an entity or person with the authority to compel such disclosure, we shall comply. We will be entitled to be paid by you for the cost of such compliance at our hourly rates.
12. Retention and Storage of Documents
Subject to any agreement to the contrary, during the course of any matter we shall retain such documents or copies thereof as in our professional judgment it is proper to retain, and for this purpose we may make or keep copies of such documents (whether in electronic form or otherwise) and destroy other versions of those documents.
Subject to any agreement to the contrary, at the completion of a matter we shall –
- At your request return to you any documents to which you are entitled;
- Otherwise retain such documents relating to the matter or copies thereof as in our professional judgment it is proper to retain
- At your request return to you any property to which you are entitled, and otherwise retain such property as in our professional judgment it is proper to retain, provided always that we shall retain such documents or property relating to your matter for the requisite time period as may be recommended by the Law Society of Scotland, from time to time, after completion of the matter. After this time, you agree that we may then dispose of the documents and property without further reference to you.
You agree that we have the right to retain independent contractors to undertake storage of any documents or property relating to your matter, whether during the carrying out of the matter or after its completion and whether such documents or property can be stored in safe custody or otherwise.
13. Co-ownership title
When we act for two or more people purchasing a property together we will draw up the title on the basis that title will be held in equal shares unless we receive specific instructions to draw up the title in different shares to reflect either an unequal contribution of sums to the purchase or the terms of the Agreement of all purchasers. If one party is contributing more than the other party, you are strongly recommended to instruct us to prepare a Deposit Agreement which is designed to protect the investment of both parties. Unless you instruct us to prepare a Co-Purchase Agreement or draw the title in different proportions then the title will be drawn in such a way that when the property is ultimately sold the proceeds of sale will be divided equally between the parties.
Buildings insurance on any purchase must be in place as at the date of entry (or in the case of a purchase from the local authority, as at the date of conclusion of missives). We will not arrange Buildings Insurance as we are not authorised to do so. The property must be insured to the full reinstatement value in the Valuation Report by the date of entry. In addition, you must ask whoever is arranging the Buildings Insurance to endorse the interest of the mortgage lender on the Policy. This means that the insurance company must be aware of the identity of the mortgage lender and provide an endorsement on the Policy to this effect. You then exhibit this to the mortgage lender. Failure to adhere to this procedure is a very common reason for a delay in obtaining mortgage funds.
15. Survivorship Destination
When the title is drawn up between two people the title can be worded either with or without a survivorship destination. If the title contains a survivorship destination it constitutes an agreement between the parties that if one party dies the property automatically transfers to the survivor. If there is no survivorship destination, then on the death of one party the share of the pre-deceased owner goes into the estate of the deceased. If there is no survivorship destination written into the title, in the case of an unmarried couple where no Will has been left the share of the pre-deceased party will, in most cases, not pass to the surviving party.
In previous years it has been extremely common for survivorship destinations to be included in titles for the sake of simplicity. Survivorship provisions in title deeds can however lead to complications in taxation planning and also practical anomalies so it is more common now to recommend that the question of survivorship is governed not by the title but by a separate Will. A Will can be prepared for you on request at an additional charge. Accordingly, unless you instruct us to the contrary in writing, we will draw the title for a joint purchase without a survivorship destination, that is to say if one party dies before the other, the pre-deceased party’s share will not transfer to the other unless a separate Will is prepared. If you wish us to proceed with a survivorship destination or wish us to prepare a Will, you must inform us of this instruction, in writing, as soon as possible.
16. Cladding & Fire Safety
In 2019 there was a shift in policy such that the majority of lenders now require an External Wall System (EWS1) report detailing the fire safety of modern, flatted accommodation. Warners will relay information in this regard to the best of our ability however we are not experts in building construction or fire safety, and we are wholly reliant on the guidance provided to us by relevant specialists. The EWS1 report is carried out for the parties relying upon it, and so any questions about the terms of the report should be referred to the commissioned surveyor for report in question. We accept no liability in respect of any error or omission in relation to any EWS1 report.
Any actions taken by you in this area including but not limited to the commission of an EWS1 report, or reliance on the information contained in such reports, remain the responsibility of you as the client.
Separately, from February 2022 the Scottish government has stated that every home must have interlinked fire alarms. Interlinked means if one goes off, they all go off, so you should always hear an alarm wherever you are in your home. The Scottish Government has confirmed that the new rules allow for flexibility and there are no penalties for non-compliance. Warners will not provide advice on the installation of alarm systems, as is it not within our professional competency to do so, and we will operate on the basis that any property is being sold on an “as seen” basis. Any purchaser will be deemed to have purchased the property as it stands, and the purchaser will be deemed to have assumed responsibility for installing compliant alarms following completion of their house purchase.
17. Papers and Documents
If you are selling a property, it is important that you provide us with copies of any documents of guarantee and documentation relating to alterations. If timber specialist treatment has been carried out for rising damp, woodworm or rot you should provide us with the estimate, plan, specification and guarantee and in the case of alterations you should provide us with the Building Warrant, the Plan with the Local Authority Stamp and the Completion Certificate (together with Listed Buildings Consent if appropriate). As these documents relate to the property, they will be passed to the purchasers’ solicitors for retention with the title deeds on completion of the transaction. Failure to provide these documents timeously can result in a delay in completion of your transaction.
18. Home Reports
A home report is commissioned in respect of most properties marketed for sale in Scotland. In accordance with Law Society of Scotland guidelines, we will not provide advice on the terms of any home report as it does not fall within our professional competencies to do so. The home report is carried out for the parties relying upon it, and so any questions about the terms of the home report should be referred to the commissioned surveyor for the home report in question. We accept no liability in respect of any error or omission in relation to any home report.
19. Searches and statutory notices
As part of any sale, we will, as standard order property and local authority searches. Where the local authority search discloses any statutory notice we will order a report to confirm whether those statutory notices have been paid or remain outstanding. In this event, you will, by accepting these terms of business, grant us authority to order the statutory notice report without the need for us to separately request this authority from you.
20. Conflicts of Interest
Before accepting your instructions, we shall endeavour to ascertain that there is no conflict of interest which, in our professional judgment, would render it inappropriate for us to act for you.
Having accepted instructions to act for you in respect of any matter, we shall not knowingly act for any other client in respect of the same or a related matter, unless you have agreed that we may do so. We shall be free to act for any other client, whether generally or in respect of any unelated matter, even though there is or may be a conflict between your interests (including in particular your commercial interests) and those of the other client, unless we, in our professional judgment, consider that it would be inappropriate so to act.
If, having accepted instructions to act for you, a conflict of interest arises, or is subsequently discovered, me reserve the right to terminate the contract with you and to thereby cease to act for you, if, in our professional judgment, we consider that it would be inappropriate to continue to act for you.
21. Fees and Outlays
We will provide you with an illustration of the anticipated fees and outlays, based on an anticipated sale price, at the outset of the transaction. Typically, fees are charged as a percentage of the sale price. For this reason, the actual fee charged may differ from the fee originally quoted, though the percentage will remain the same. The estate agency fee shall be chargeable in full at the point we receive an offer for the property which is either acceptable to you or would have been acceptable to you except for the fact that you otherwise decide not to proceed with the sale.
Where we act for you in an estate agency only capacity, for example where you wish to use our expertise in the marketing of the property but wish to instruct a local or family solicitor to undertake the conveyancing, by instructing us in relation to the marketing of the property you are also deemed to instruct the conveyancing solicitor to pay our fees and outlays relative to the estate agency from the net free proceeds of sale of the property.
If you instruct us to act in the marketing of your property and if the property does not sell or your circumstances change and you elect to withdraw the property from the market, you will be liable to pay a marketing fee of £250 plus VAT plus any unpaid outlays we have incurred on your behalf such as the ESPC registration fee, advertising costs, Home Report costs and any other charges incurred, within seven days of your instruction to withdraw the property from the market.
If during the time that your property is on the market with Warners Solicitors LLP you opt not to accept an offer at, or in excess of, the Home Report valuation and you subsequently decide to withdraw your property from the market, you will be liable for the full estate agency fee quoted for your sale. You will also be liable for the full estate agency fee quoted for your sale where, having withdrawn your property from the market, you then sell your property within 6 months of the date of withdrawal.
We will provide you with a fixed fee quote for conveyancing, based on an anticipated price, at the outset of the transaction. We will also provide you with standard outlays for either a sale or purchase, to match your instructions. The fees for conveyancing are based on the transaction proceeding as a standard conveyancing transaction with no unforeseen difficulties. Sometimes, during the course of a conveyancing transaction, complications can arise which can create considerable additional work which could not be contemplated at the time the original quotation was provided. In those circumstances there will be an increase of fees to be charged. Examples of conveyancing complications with associated and anticipated increases in fees are as follows, (these fees may be higher or lower depending on the amount of time spent in resolving the difficulty, the complexity of the work and experience and skills required to resolve the problem):
Organising Closed Bridging (where available) - £350.00 plus VAT
Organising Open Bridging (where available) - £500.00 plus VAT
Dealing with Statutory Notices identified - £50.00 plus VAT per notice
Obtaining missing warrant documentation from Archives - £100.00 plus VAT
Co-ordinating Damp and Timber Specialist - £75.00 plus VAT
Organising Roofing Contractor - £75.00 plus VAT
Organising Electrical or Gas Compliance Certificate - £75.00 plus VAT
Organising a Property Inspection Report - £125.00 plus VAT
Dealing with Council Tax Mandates - £150.00 plus VAT
Discharge of Second Charge - £150.00 plus VAT
Dealing with Discharge of Inhibition - £225.00 plus VAT
Drawdown of Help to Buy/Lifetime ISA - £50.00 plus VAT
Dealing with property with a septic tank - £150.00 plus VAT
Third Party Gifted Deposit (per party) - £75 plus VAT
Shortly before the date of entry for all purchase transactions, you will receive an updated financial summary showing the final figures involved in the transaction. If this shows that funds are required from your own resources these must be paid to us by direct bank transfer at least two working days before the date of entry. If you require to pay funds by cheque you require to let us have that cheque at least seven working days before the date of entry.
The fee which we charge will cover work up to completion of the sale or purchase and normal routine conveyancing work thereafter, such as registration of the title and delivery of the title deeds to a lender. If additional work becomes necessary after the date of entry, for example if the central heating system is faulty and a claim is made in this connection we will, of course, normally charge separately for that according to the amount of work involved. As a matter of goodwill, we generally do not charge for the first two letters in relation to such claims. Thereafter we will charge at an hourly rate. Please note that we do not offer court services. If a claim progresses to court action, you may require to appoint a court agent to represent you. We can provide you with a recommendation in this respect if needed.
Where a transaction does not proceed all the way to completion, we shall be entitled to charge a fee based on the level of work carried out to the point that the transaction ceased. The fee charged will be proportionate to the amount of work carried out for the given transaction. For example, if the amount of work carried out equated to 50% of the work normally carried out during a standard transaction, then we would charge a fee equivalent to 50% of the quoted fee.
We shall be entitled to charge for all outlays which are incurred by us on your behalf, whether or not they have been specified in the original breakdown of fees and outlays provided to you. Although we will endeavour to provide an exhaustive list of fees and outlays to you, the nature of conveyancing means that certain costs may be incurred which have not been anticipated at the outset. In the event that such outlays are incurred, we will not require to seek your express permission to pay those outlays for you, but will do so if required as part of your transaction. Examples of such outlays would be, but not limited to, the payment of additional searches, such as coal report or environmental searches, payment of registration dues for discharges, where the loan itself has been repaid but the security not discharged, and the cost of obtaining copy documents that were not with the title deeds for your property. This is an illustration of, and not an exhaustive list, of the charges which may apply.
Private Client Work
We will provide you with a fixed fee in respect of the preparation of Wills and Powers of Attorney. Fees for executries, trusts and other private client services are prepared on the basis of the following factors : -
Chargeable time spent in carrying out your instructions; giving advice; responsibility for the work undertaken and the timescale agreed for completion, if appropriate.
The hourly chargeable rates vary depending on the experience and skill of our personnel handling your instructions; the nature and complexity of the work involved; the amount of value of the money or property involved; the difficulty of novelty of the issues addressed and the length, number or importance of the documents or papers considered, all in accordance with the guidelines published by the Law Society of Scotland
Where you are entering into a fee-charging agreement with us, the rates applicable to your instructions will be those specified in the initial Letter we send to you confirming the instruction to act for you.
Rates are exclusive of VAT and so are the other outlays we may have to pay on your behalf. Our rates are subject to annual review in April of each year. We may render interim fees where the executry matter is lengthy. On the completion of the executry administration we may forward the file to a Law Accountant for an assessment of the fee to be made. We shall be responsible for the Law Accountant’s costs in this respect. You will accept the Law Accountant’s assessment of the work being the fee which will be charged.
22. Terms of Payment
Invoices for estate agency matters are payable within seven days of completion of the relevant sale. You authorise us to send the invoice to the solicitor acting for you in respect of the sale, where Warners are dealing only with the marketing of your property and not the conveyancing. In addition to our fee, we will also request payment of any outstanding outlays due at the point of sale, where these have not been paid in advance.
Invoices for fees and outlays in relation to conveyancing transactions which proceed to settlement are payable on the date of entry. We will deduct all fees and outlays from funds in our possession and account to you for the balance. Where we are acting for you in a sale, any net free proceeds will normally be remitted to your nominated bank account two working days after your sale completes.
Please note that any payments of free proceeds will only be made to the client or clients directly. We will not accept instructions to make payments to third parties.
For Wills and Powers of Attorney, our fee is due within seven day of our fee being rendered to you.
For executry administrations, we will deduct the fees and outlays from the residue of the estate, before paying any free proceeds to you. Where there are insufficient funds to cover our fees, we may require you to pay our fee in advance. We will notify you of this at the appropriate time. In this event our fee is due within seven days of our fee being rendered to you.
We may require you to settle accounts and repay outlays during the course of transactions. In such a case interim statements of fees will be issued. Large outlays will require to be paid to us before they are due to be paid out by us.
Where any payment is made on your behalf by bank transfer, whether that be for a purchase price, a redemption of a mortgage, or sending proceeds of a sale to you or indeed any other matter, a bank transfer fee of £30 inclusive of VAT is applied and will be deducted from the funds sent and shown on both your fee note and cash statement. Payment by bank transfer is the normal mechanism for such payments. We do not normally include the cost of any bank transfers in our quotations as, at the outset, it is not known how many such transactions will apply to any given transaction.
The latest time for sending payments on your behalf shall be 3.30pm. Any sales settling after 3.30pm will result in the mortgage being repaid on the following working day. In this event we will pay, on your behalf, any additional daily interest to ensure your mortgage is fully repaid.
Where we act for you and you agree that we should refer your details to an independent financial adviser for independent financial advice we will do so without charge however we may receive a commission from the financial adviser in respect of that referral.
Warners may also receive commissions from third parties including surveyors, searchers and property website providers.
Clients of Property Law Centre should note that a case management fee of £300 plus VAT on purchases will be paid to that Company by ourselves for all work carried out on our behalf. Clients of Property Law Centre should also note that a case management fee of £300 plus VAT on sales will be refunded to that Company by ourselves for all work carried out on our behalf.
Where you do not pay any fee which is requested from you, you accept that we will pass your information for collection by a third-party debt collection agency. Should this happen, you will be responsible for payment of our fee, as well as the fee charged by the debt collection agency.
23. Client Money
We shall not pay interest on any client money held by us on your behalf in our general client account. In accordance with Rule 10.1 of The Law Society of Scotland Accounts Rules, we will only apply interest to funds held where the funds will accrue interest of £150 or more across the term of the whole transaction. Where such interest is paid to you gross you accept responsibility for declaring that interest in your next tax return.
We will maintain a ledger account for funds held on your behalf. Our main clients account is with Royal Bank of Scotland.
If, when returning funds held on account to you for a sum between £10 and £49.99, we discover that the address and contact details you have provided us with are not current, we are not required to make further enquiry as to your new address and can dispose of the balances in accordance with the Law Society of Scotland Solicitors (Scotland) Accounts, Accounts Certificate, Professional Practice and Guarantee Fund Rules 2001. Where the balance due to you is over £50 we will attempt to trace you at your current address and will charge you a reasonable fee for doing this. The fee charged will be deducted from any amount due to be paid to you
Where we send to you by cheque any free proceeds on your completed transaction account, and that payment is not cashed we shall be entitled to transfer any balance between £10 and £49.99 to our nominated charity ledger. In these circumstances you accept that you will not then be able to seek recovery of that amount at a later date. For any payments not cashed by you in the sum of £50 or more, we will contact you by telephone or email to try to make arrangement for payment to you. If we do not hear from you within 14 days of such contact, we shall make an application to the King’s and Lord Treasurer’s Remembrancer office and send the funds to them. If you contact us at a later date requesting funds back from KLTR there is a £50 admin charge for this which will be deducted from any funds due, together with any reasonable fee which we may charge in connection with the work required to recover these funds.
The firm does not accept liability for funds held on your behalf in the event of an “authorised deposit taker” (as defined by the Financial Services and Markets Act 2000, as amended, and subsidiary legislation) such as a bank or building society, being unable or likely to be unable to return funds which have been deposited with it. This also applies to funds held on your behalf but awaiting clearance through the banking system where such funds are held in our clients’ account. In such an event, you may be entitled to receive compensation in accordance with the prevailing Government’s Indemnity Limits from the Financial Services Compensation Scheme.
24. Money Laundering Regulations
To enable us to comply with the Money Laundering Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (“the 2017 Regulations”) we must have on file evidence of your identity. Please let us have your current passport or driving licence and also a recent gas, electricity, telephone bill, mortgage statement or Council Tax Demand which is not more than 3 months old. Please bring these into any of our offices and a member of staff will be happy to copy them for you. Please note that each party must bring in the appropriate identification in person – it is NOT sufficient for identification to be supplied by someone other than the client in question. Similarly, where identification relates to a joint transaction both parties must attend our offices to provide their respective documents. One party cannot supply identification for both clients with the other party remaining absent. Where you are introducing funds to the firm, we also require you to provide bank statements showing the funds held on your account to cover the payment in question. Where funds are being received either directly or indirectly from a third party it will be necessary to obtain both identification and evidence to demonstrate the source of the funds and the source of the wealth in respect of that third party. Please note that failure to provide all necessary evidence in respect of identification and source of wealth and funds documentation may result in a delay in settlement of your transaction.
In addition to receiving your ID, we also require all clients to complete our standard form client questionnaire. This contains a request for various pieces of personal information sufficient to allow us to prepare a client profile in order that we can fulfil our regulatory requirements. All such information shall be held by us as private and confidential and will not be released to any third parties.
If you are a private limited company, we shall require to obtain a full Company profile from Companies House, which shall include details of the company name, company number and the address of the registered office and business address. We shall also require a copy of the Certificate of Incorporation.
In addition, we shall require the names of all directors and beneficial owners and Persons with Significant Control, and sufficient evidence of their identity, together with evidence that the person providing instructions on behalf of the company is duly authorised.
We will require to comply with the Terrorism Act 2000, Proceeds of Crime Act 2002, the 217 Regulations, the Counter-Terrorism Act 2008 and the Criminal Finances Act 2017, and we will require to source all funds remitted to us. We cannot act for you without being satisfied on these issues. We may not settle a transaction unless you timeously provide us with the relevant information requested. Please therefore respond to these requests immediately. We will not be liable for loss or delay if you do not co-operate. We will not accept any payments in cash. In addition, we shall be required to report any suspicious activity to the National Crime Agency in terms of the relevant legislation.
Where funds are being made, either directly or indirectly, by a third party, we shall charge a fee of £75 plus vat in respect of each third party in relation to the investigation required to identify both the third party and the source of both the third party’s wealth and funds. The said charge will be over and above and compliance fee mentioned in any fee quote. Further, in the event that additional works are required making the investigation more complicated, we reserve the right to charge an additional fee although we will advise you of any such further fee in advance.
All formal identification and source of funds and wealth evidence will be retained by us indefinitely on file (both paper and electronic) as part of our audit checks.
If we are instructed by you in respect of the purchase of a property, the 2017 Regulations place an obligation on an estate agent to carry out, among other things, identity checks on a purchaser, at the point of a purchaser’s offer being informally accepted by the seller. You acknowledge this and hereby provide your consent for us to supply certified copies of any identification documents we hold on your behalf to a seller or anyone acting on their behalf, when reasonable called upon to do so.
We shall carry out verification of our clients’ identity as well as other checks including checks against HM Treasury Financial Sanctions List (the “Sanctions List”) and the register of Politically Exposed Persons (“PEPs register”). In carrying out any such checks we will use the services of third-party suppliers. Third party suppliers will require that we provide clients full names and address, as well as details of documentation (passport and driving licence numbers), telephone numbers, national insurance numbers as well as details of other documentation which you have provided to us as part of our money laundering compliance requirements. We will provide all and any such information to any third party suppliers, in so far as it is required, to allow us to obtain verification checks in respect of your identification, and that you are not registered against the Sanctions List and the PEPs register.
If we have any reason to suspect that a transaction or funds involved in a transaction are an attempt to launder money, then we have a positive obligation to notify the National Crime Agency (“NCA”) of our suspicions. This duty overrides a solicitor’s duty to keep their clients’ affairs confidential. We have a duty of disclosure if our suspicion arises for any reason, even if that reason is your failure to provide us with information. In any such event, and in most cases, we are not permitted to advise you that we have notified NCA of our suspicions. If we were to do so we would ourselves be committing a criminal offence.
You acknowledge our duty to make such disclosures we may at our discretion consider necessary or appropriate pursuant to the Proceeds of Crime Act 2002, the 2017 Regulations, the Criminal Finances Act 2017 or any legislation subsequently amending or supplementing any of that legislation and any other legislation which place an obligation or duty on solicitors to disclose information in circumstances where we have a reason to suspect that the transactions made are an attempt to launder money or evade tax. You also acknowledge and agree that our duty of confidentiality to you is overridden by our duty to notify the NCA, or HMRC, if we have any reason to suspect that a transaction or use of funds in a transaction is an attempt to launder money, or evade tax.
It may be necessary for your matter to be considered by a solicitor other than the person with conduct of it for the purpose of consideration of the application of money laundering legislation to your instructions. We may render a fee in relation to this work.
There is a high risk posed by cyber fraud, specifically affecting email accounts and bank account details. In order to mitigate against these risks we have adopted the following positions and practices.
We will not send you an email, text or website link advising that we have changed our bank account details or asking you to make payment to an alternative bank account, than any originally provided to you. If you receive such an email, text of website link it is likely to be fraudulent, and not from us. In such circumstances you should contact us using the telephone numbers shown on our website to confirm whether it was sent by us. Our website is www.warnersllp.com .
Where you are making payment to us, we recommend that you send a £10 test payment before sending any large payment. This will allow us to verify with you that the test payment has been received, before sending the main deposit payment. We will not accept responsibility or liability if you transfer funds to the wrong account.
Where you communicate your account details to us by email, we will verify those bank details with you by telephone before sending funds to you.
26. Data Protection
During the course of our engagement you may disclose personal data to us in order that we may provide our services to you. The processing of personal data is regulated in the UK by the General Data Protection Regulation EU 2016/679 as supplemented by the Data Protection Act 2018 together with other laws which relate to privacy and electronic communications. In this clause, we refer to these laws as "Data Protection Law". In providing our services, we act as an independent controller and are, therefore, responsible for complying with Data Protection Law in respect of any personal data we process in providing our services to you. Our privacy notice which can be accessed at /privacy-policy/ explains how we process personal data. You are also an independent controller responsible for complying with Data Protection Law in respect of the personal data you process and, accordingly, where you disclose personal data to us you confirm that such disclosure is fair and lawful and otherwise does not contravene Data Protection Law. Terms used in this clause bear the same meanings as are ascribed to them in Data Protection Law.
In addition to providing our services to you, we will use your personal data for related services including updating and enhancing client records, analysis to help us manage our practice, statutory returns, and to carry out identity checks an accordance with our money laundering obligations. We may also pass your personal data to other people or organisations (“data processors”) to carry out these activities on our behalf. If we do this we will require those data processors to put in place appropriate measures to protect your personal data.
When you provide personal data to us relating to your officers, employees, family members or any other third party, you confirm that you are authorised to act as their agent or have their consent or have the appropriate legal basis to provide such information.
We may monitor electronic communications sent from us to you for the purpose of checking compliance with our legal obligations and internal policies.
27. Environmental Matters
Please note that we are not qualified and therefore not able to comment on environmental matters and as such could not provide any advice relating thereto.
28. Taxation Implications
Almost any legal transaction whether of a private or business nature can affect the amount of tax or other government duties which you may have to pay in either the short or long term. However, we will not offer tax advice other than to assist those clients who are involved in a Purchase of Property with the preparation and submission of a Land and Buildings Transaction Tax (LBTT) return to Revenue Scotland. While we are able to offer guidance on the level of LBTT and any related. Additional Dwelling Supplement (ADS) payable and will submit the LBTT return and the payment of any (LBTT/ADS) tax due on your behalf to Revenue Scotland we are not tax experts and ultimately you as the Purchaser remain legally responsible for fulfilling both of these actions accurately and on time, where required to do so. Consequently, and subject to the foregoing we shall not be responsible for any failure to offer tax advice or any incorrect opinion passed on a tax matter. While we do not give tax advice, where you are selling a property which you do not live in and/or which forms part of an investment or where you are purchasing a property as an investment there will in all probability be implications for Capital Gains Tax and we would recommend that you take advice from a specialist tax accountant as early as possible.
29. Client Care
We are committed to providing a high-quality service. Our reputation is of paramount importance to us. Unfortunately, it is an imperfect world and from time to time, despite our best efforts, things may go wrong. Matters of law are inevitably complex and it may be that a problem is not of our making. If, however, you have any concerns as to the manner in which the transaction is being, or was, handled or the fee that has been charged your complaint should, in the first instance, be directed to the partner responsible for the matter. Thereafter if you are not satisfied our Client Relations Partner, Jim MacLachlan, will ensure that any complaint is properly and objectively investigated and dealt with and that you are fully advised of all your rights. If, however, after investigation by the Client Relations Partner you are still not satisfied, you are at liberty to refer the matter to The Scottish Legal Complaints Commission, 10-14 Waterloo Place, Edinburgh EH1 3EG. The SLCC website is www.scottishlegalcomplaints.com.
If a complaint is to be made to the Scottish Legal Complaints Commission (“SLCC”) for any conduct occurring after 1 April 2017, you must contact the SLCC within 3 years of the service ending, or within 3 years of the date when you could reasonably have been made aware of the matter. If you make a complaint after the 3 year has passed, it is unlikely that the SLCC will be able to consider the complaint unless there are exceptional circumstances.
We recognise that Alternative Dispute Resolution Regulations have implemented ADR/EDR Directive 2013/11/EU to promote alternative dispute resolution as a means of redress for consumers in relation to unsatisfactory services. We have however chosen not to adopt an ADR process and if you have any concerns about the services you receive from this firm you should contact the firm’s Client Relations Partner.
30. Termination of Agency
We expect to continue to act on any matter on which we have accepted instructions until the matter is completed, unless either of us bring those instructions to an end earlier.
We will not normally withdraw from acting unless there is good reason, for example, where a conflict of interest arises, where we cannot obtain clear or proper instructions on how we are to proceed, where you do not pay our bill or comply with our request for payment on account, where you give us instructions which conflict with our rules of professional conduct, or where we consider that it would not be in your best interests for us to continue to represent you, for example if there was a breakdown in the essential element of trust and confidence between us. If instructions are terminated you will only be liable for the payment of our fees and outlays to the date of termination of the instructions together with any fees or outlays for work necessary in connection with the transfer of the matter to another advisor of your choice. We will be entitled to retain all files, documents and other papers held by us on your behalf until all outstanding fees and outlays have been paid in full.
If you or we decide that we shall no longer act for you, you agree to pay our outstanding charges and expenses, including those not yet billed.
31. Professional Indemnity
Warners Solicitors LLP carries professional indemnity insurance under the Law Society of Scotland’s compulsory Master Policy. The cover is provided by a panel of insurers with the lead insurer being Royal and Sun
In any transaction or delivery of legal services to you, our liability for any acts of negligence on the part of Warners Solicitors LLP, its members and/or its employees is limited to the lower of the value of the transaction or our master policy cover, unless we specifically agree otherwise in writing. In no circumstances will any individual of Warners Solicitors LLP be liable to you personally, whether by reason of negligence or otherwise.
We will not be responsible for the consequences of, and shall not be liable for, any loss caused to you by any third party arising from any misleading, incomplete or erroneous instructions or information given by you or where information or instructions are not provided timeously. In respect of any claim by such a third party in such circumstances, you will wholly indemnity us in respect of that claim.
All copyright in documents we produce is reserved to us. Advice given and documents prepared are for your use only and may not be copied or used by any third party without our express written consent.
34. Incidental Financial Business
We are authorised by the Law Society of Scotland to carry out incidental financial business. These activities are limited in scope, and we will not provide or comment on any investment advice.
Please note that the following will constitute our Terms of Business Letter to you as required under Rule C2. 21 of the Law Society of Scotland Practice Rule C2: Incidental Financial Business: -
Terms of Business letter required under Rule C2.21
(a) Where the specific Incidental Financial Business undertaken by Warners is the sale of shares, that sale will be through stockbrokers on your instructions. The firm has limited its Incidental Financial Business activities to arranging the sale of these shares given the limited scope of activities allowed under the Law Society of Scotland’s Incidental Financial Business regime. A separate letter confirming the details of the stockbroker being used and which company shares are being sold will be provided to you separately.
(b) The firm of Warners is licensed by the Law Society of Scotland to carry on Incidental Financial Business under the Society’s Practice Rule C2: Incidental Financial Business.
(c) The firm of Warners is not authorised by the Financial Conduct Authority under the Financial Services and Markets Act 2000.
(d) The firm of Warners has Professional Indemnity Insurance under the Law Society of Scotland’s Master Policy. The current level of indemnity under the Master Policy is £2m per claim. Warners is also covered by the Scottish Solicitor’s Guarantee Fund which is a fund established under Section 43 of the Solicitors (Scotland) Act 1980 for the purposes of making grants in order to compensate persons who, in the opinion of the Council of the Law Society of Scotland have suffered pecuniary loss by reason of dishonesty on the part of a Scottish solicitor in connection with the practice of a solicitor.
(e) Any complaint which you may have about any service provided by this firm should be directed to the Client Relations Partner, James MacLachlan. Please note that you also have a right to complain to the Scottish Legal Complaints Commission, the Stamp Office, 10-14 Waterloo Place, Edinburgh EH3 3EG, telephone 0131 201 2130 www.scottishlegalcomplaints.org.uk/
Statement of Demands and Needs
The following represents our statement of demands and needs in respect of any specific contract of insurance which we have arranged for you –
(a) The firm of Warners has recommended that you take out a contract of insurance for indemnity insurance or bond of caution insurance with the insurance company provided for in the quotation we have obtained for you.
(b) The demands and needs of you, in respect of this insurance contract are that you wish insurance cover for the lowest available annual premium, subject to approval by any other party with whom you are contracting.
(c) The firm has made this recommendation from a limited number of insurance companies, or from a single insurance company, where only one such company is available, as you wish to secure the lowest premium with the widest cover.
Please note that as this recommendation is based on a limited number of insurance companies you may request a list of these limited companies. Where only one company offers the insurance that is required for your transaction, we will use that company. In the case of Bonds of Caution, we will only use CLS, Great Lakes Insurance SE United Kingdom Branch, Munich Re Group Offices, 13th Floor, 10 Fenchurch Avenue, London, EC3M 5BN, trading as CLS Property Insight.
Please note that the following information is being disclosed to you in respect of any contract of insurance attributable to your transaction, if any, under Rule C2.13.1 of the Law Society of Scotland Practice Rules -
(a) Warners Solicitors LLP, 22 St Patrick Square, Edinburgh, EH8 9EY (“Warners”) is an ancillary insurance intermediary as defined under the Law Society of Scotland Practice Rule C2: Incidental Financial Business.
(b) Warners is not authorised by the Financial Conduct Authority. However, Warners is included on the Register maintained by the Financial Conduct Authority so that we can carry on insurance distribution activity, which is broadly the advising on, selling and administration of insurance contracts. This part of our business, including arrangements for complaints or redress if something goes wrong is regulated by the Law Society of Scotland. The FCA Register can be accessed via the Financial Conduct Authority website at www.fca.gov.uk/firms/financial-services-register
(c) Warners’ status as an ancillary insurance intermediary as listed on the FCA’s Register can be checked by visiting the FCA’s website at http://www.fca.org.uk or by contacting the FCA on 08466069966. Our EPF reference number is LSS 33172.
(d) Warners has no holding, direct or indirect, representing 10% or more of the voting rights or the capital in any Financial Services or Insurance company.
(e) No Financial Services or Insurance company or parent of a Financial Services or Insurance company has a holding, direct or indirect, representing 10% or more of the voting rights or of the capital in Warners.
(f) The contract of insurance provided by Warners has been selected –
From a limited number of insurance companies; or
From a single insurance company where only one is available
Warners is not contractually obliged to conduct insurance distribution in this way.
(g) As the contract of insurance provided has not been selected on the basis of a fair and personal analysis of the market, you shall be provided with a list of the insurance companies, Warners has selected from, with respect to the selected insurance contract. Where only one insurance company is available for the type of insurance required, we will use that company.
(h) Warners has Professional Indemnity Insurance under the Law Society of Scotland’s Master Policy. The current level of indemnity under the Master Policy is £2m per claim. This firm is also covered by the Scottish Solicitors’ Guarantee Fund which is a fund established under Section 43 of the Solicitors (Scotland) Act 1980 for the purposes of making grants in order to compensate persons who, in the opinion of the Council of the Law Society of Scotland have suffered pecuniary loss by reason of dishonesty on the part of a Scottish Solicitor in connection with the practice of the solicitor.
(i) Any complaint which you may have about the service provided by Warners should be directed to the Client Relations Partner, James MacLachlan. You also have a right to complain to the Scottish Legal Complaints Commission, the Stamp Office – 10-14 Waterloo Place, Edinburgh EH1 3EG, Telephone 0131 201 2130 www.scottishlegalcomplaints.org.uk/
35. Force Majeure
We shall not be liable to you if we are unable to perform our services as a result of any cause beyond our reasonable control. In the event of any such occurrence affecting us we shall notify you as soon as reasonably practicable.